November 2021: New Jersey Employers Now Required to Give Job Preference to Certain Employees

Update Applicable to:

All employers in New Jersey.

What happened?

On September 24, 2021, Governor Murphy signed Assembly Bill 2617 (AB2617) amending New Jersey’s Workers’ Compensation Act.

What are the details?

Effective immediately, the bill amends New Jersey’s Workers’ Compensation Act to require employers with 50 or more employees to provide a hiring preference. This will be to employees following a work-related injury, who have reached maximum medical improvement but are unable to return to the positions where they were previously employed.

For more information, please see the links below:

AB 2617

Article

What do employers need to do?

Employers should review the bill and their applicable policies for injured employees to comply with the bill.

November 2021: New Jersey 2022 Minimum Wage Increases

Update Applicable to:

All employers in New Jersey.

What happened?

On February 4, 2019, Governor Murphy signed Bill A-15 into law, which sets to raise the minimum wage to $15 per hour by 2024.

What are the details?

Effective January 1, 2022, the following minimum wage increases will go into effect due to Bill A-15:

  • Most employers: increase from $12 to $13 per hour.
  • Tipped employees: increase from $4.13 to $5.13 per hour.
  • Seasonal and small employers (fewer than 6 employees): increase from $11.10 to $11.90 per hour.
  • Agricultural employees: increase from $10.44 to $10.90 per hour.
  • Long-term care facility staff: from $15 to $16 per hour.

For more information, please see the links below:

Bill A-15

Article

What do employers need to do?

Employers should review the information above and their payroll policies, and make changes to comply with the law.

August 2021 New Jersey HR Legal Updates

New Jersey Requires Vaccines or Testing of Employees in High-Risk or Healthcare Settings

Update Applicable to:
Employers in New Jersey in the covered businesses detailed below.

What happened?
On August 6, 2021, Governor Murphy issued Executive Order 252 (EO 252).

What are the details?
The order, effective September 7, 2021, requires employers in the “covered settings” to have adequate policies, privacy protections, and training or education procedures in place. The employer settings covered in the order are as follows:

  • Healthcare facilities:
    • Acute, pediatric, inpatient rehabilitation, and psychiatric hospitals (including specialty hospitals, and ambulatory surgical centers).
    • Long-term care facilities.
    • Intermediate care facilities.
    • Residential detox, short-term, and long-term residential substance abuse disorder treatment facilities.
    • Clinic-based settings (e.g., ambulatory care, urgent care clinics, dialysis centers, Federally Qualified Health Sites, family planning sites, and opioid treatment programs).
    • Community-based healthcare settings (e.g., Program of All-Inclusive Care for the Elderly, pediatric and adult medical daycare programs, and licensed home health agencies and registered health care service firms).
  • High-risk congregate settings:
    • State and county correctional facilities.
    • Secure care facilities operated by the Juvenile Justice Commission.
    • Licensed community residences for individuals with intellectual developmental disabilities (IDD) or traumatic brain injuries (TBI).
    • Licensed community residences for adults with mental illness.
    • Certified day programs from individuals with IDD or TBI.
    • Certain long-term care facilities subject to prior New Jersey Department of Health Executive Directives.

Covered settings must establish a policy that requires covered workers to provide adequate proof of full vaccination for COVID-19 or submit to COVID-19 testing one to two times weekly minimum. Any covered workers who are not fully vaccinated or have not provided adequate proof of vaccination by the effective date must submit to the testing protocol until fully vaccinated.

Covered workers are considered fully vaccinated two weeks or more after receiving the second vaccine dose in a two-dose series or after a single-dose vaccination. The acceptable forms of vaccination proof include:

  • The Centers for Disease Control and Prevention (CDC) COVID-19 Vaccination Card issued by the vaccination site (or an electronic or physical copy of the card).
  • An official record from the New Jersey Immunization Information System (or other state registry).
  • A record from a healthcare provider’s portal or record system on official letterhead, signed by a licensed physician, physician assistant, nurse practitioner, registered nurse, or pharmacist.
  • A military immunization record from the Armed Forces.
  • A docket mobile phone application record or any state specific application that produces a digital health record.

Beginning the effective date, covered workers in a covered setting that are unvaccinated for COVID-19 must submit to COVID-19 testing at least one to two times per week. The covered setting also must establish a policy for tracking test results and report those results to its local health department.

The order can be read here.

An article on the order can be found here.

What do employers need to do?
Employers should review the order here and their current policies on vaccination to process any applicable updates and introduce any required policies to compliant with the state of New Jersey.

July 2021 New Jersey HR Legal Updates

Larger Penalties for Employee Misclassifications in New Jersey 

Update Applicable to:
All employers who operate and have employees in New Jersey. 

What happened?
On July 8, 2021, Governor Phil Murphy signed bills A5890/S3920, A5891/S3921, and A5892/S3922 into law. 

What are the details?
With A5890/S3920, effective immediately, the New Jersey Department of Labor and Workforce Development (NJDOL) is authorized to shut down a workplace that is found to have violated the Unemployment Compensation Law (UCL) and levy fines for each day the employer ignores the NJDOL’s order. 

New Jersey businesses can be issued a stop-work order and an indefinite suspension of business operations if they fail to pay UCL contributions. The order would encompass all locations and not a single location and the NJDOL can also assess a civil penalty of $5,000 per day for each day the employer conducts business in violation of the stop-work order. A request for a hearing challenging the stop-work order does not stay the effectiveness of the stop-work order. Businesses that receive a stop-work order must pay its employees for the first 10 days of the order. 

Failure to maintain wage records may trigger a permanent ban on a company’s New Jersey operations and a fine of not less than $1,000 per day until the employer gets into compliance. 

The second law, 5891/S3921, creates the Office of Strategic Enforcement and Compliance, which will investigate claims of employee misclassification and coordinate strategic enforcement efforts both within the NJDOL and across other state agencies. To be considered in substantial good standing with the state, an employer must have no outstanding liabilities for unpaid contributions into the Unemployment Compensation Fund. Businesses with any outstanding liability will receive no business assistance from NJDOL and their status with the NJDOL will be reported to other state agencies. 

The third law, A5892/S3922, effective January 1, 2022, streamlines the process for identifying unlawful employee misclassification, and provides that businesses that misclassify employees commit insurance fraud. An employer that is found to have “purposely” or “knowingly” misclassified its employees violates the New Jersey Insurance Fraud Prevention Act and is subject to fines starting at $5,000 for the first violation, $10,000 for the second violation, and $15,000 for each subsequent violation. An adverse finding under this law will trigger an investigation by the New Jersey Department of Banking and Insurance (“NJDOBI”). 

An article on the new bills can be read here. 

What do employers need to do?
Employers should review the laws and the information above to continue to stay in compliance in their employee classification and unemployment compensation processes.


May 2021 New Jersey HR Legal Updates

New WARN Changes Upcoming in New Jersey

Update Applicable to:
All employers operating within New Jersey.

What happened?
With the ending of the public health state of emergency in New Jersey, the effective date for changes tied to New Jersey’s Worker Adjustment and Retraining Notification (WARN) Act laws will begin to get closer.

What are the details?
Currently, the new set of changes to New Jersey’s WARN laws are tied to the ending of the state of emergency. With the state of emergency likely to end on or before June 13, 2021, it would place the effective date of these changes on September 11, 2021.

The major changes to the WARN laws in New Jersey would be as follows:

  • The amended law applies to employers with at least 100 employees, regardless of tenure or hours of work.
  • Notice is triggered by the termination of 50 employees, regardless of tenure or hours of work.
  • Terminations across the state are aggregated to determine if the threshold is met, regardless of where within the state the terminations occur.
  • Notice is increased to 90 days, previously 60.
  • Severance pay is automatic (though it integrates with existing employer severance plans, policies, or Collective Bargaining Agreement requirements) – with additional severance due if notice is not given.
  • Employees may not waive their right to severance under the law without state or court approval.

The bill can be read here.

An article with a more detailed breakdown may be found here.

What do employers need to do?
Employers should continue to monitor the situation and prepare to update their procedures related to layoffs and terminations once the effective date is settled.

November 2020 New Jersey Legal HR Updates

New Jersey Governor Signs Executive Order 192

What happened?
Governor Murphy signed Executive Order (EO) 192 on October 29, 2020 with an effective date on November 5, 2020.

What are the details?
EO 192 includes many different new requirements for New Jersey employers. EO 192 will apply to every business, non-profit, and governmental or educational entity. The order mainly focuses on new requirements for employers that require or permit employees to work at the physical workplace. Specifically, the requirements touch on the following subjects:

  • Physical distancing
  • Face masks or coverings
    • Includes language permitting employers to deny access to the workplace to individuals who will not wear a face mask or covering
  • Availability of sanitization materials
  • Employee hygiene requirements
  • Workplace sanitization
  • Routine employee health checks
  • Notification requirements for COVID-19 exposures in the workplace

Some employees are exempt from the requirements listed in EO 192 if they interfere with the discharge of their operational duties. These employees are: first responders, emergency management personnel, emergency dispatchers, healthcare personnel, court personnel, law enforcement, corrections personnel, hazardous material responders, transit workers, child protection personnel, child welfare personnel, housing or shelter personnel, military employees, and governmental employees engaged in emergency response activities.

Additionally, the order requires that the New Jersey Department of Labor and Workforce Development produce compliance and safety training for employers and employees through its programs, as well as provide notices or other informational materials to inform workers of their rights and employers of their obligations.

An article going in more detail on the requirements of the executive order can be found here.

The EO can be found here.

What do employers need to do?
New Jersey employers should review the requirements above and update their workplace policies as needed to remain in compliance.

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Governor Murphy Signs Industry-Specific COVID-19 Restrictions

What happened?
In response to a recent COVID-19 surge, New Jersey Governor Murphy issued Executive Order (EO) 194, which impacts food and beverage establishments, scholastic and youth sports, and personal care services.

What are the details?
Of the impacted industries, the food and beverage industry were given the majority of the new restrictions. Specifically, those working in these industries will need to drastically reduce their seating capacity, by either spacing out tables by the minimum six feet apart in all directions, or by erecting barriers between tables, per guidance from the New Jersey Department of Health. Indoor operations must cease between the hours of 10:00 p.m. to 5:00 a.m., every day. Additionally, indoor bar areas are now prohibited for establishments to use. However, the order does expand the definition of outdoor seating area to now also include enclosed outdoor areas, provided that they meet certain requirements like ventilation and cleaning requirements.

Youth sports will be restricted by disallowing out-of-state travel for any activities and indoor sports venues are not to be used. These restrictions do not apply to collegiate or professional sports activities.

Personal care facilities will need to limit occupancy of any indoor premises to 2% of the maximum stated capacity. Some impacted businesses include cosmetology shops, barber shops, beauty salons, hair braiding shops, nail salons, electrology facilities, spas, day spas, massage parlors, tanning salons, and tattoo parlors.

An article covering these restrictions can be found here.

The Executive Order can be found here.

What do employers need to do?
New Jersey businesses operating in the impacted industries should update their workplace practices to reflect the new requirements.

September 2020 New Jersey HR Legal Updates

New Jersey Department Of Labor Issues Final Regulations for COVID-19 Job Protection Law

What happened?
On March 20, 2020, New Jersey passed a new job protection law for COVID-19–related job loss scenarios. The New Jersey Department of Labor (DOL) released the final regulations to this law early September 2020.

What are the details?
The law generally protects employees from adverse actions when they take or request time off at the written or electronic recommendation of a medical professional licensed in New Jersey because they have or are likely to have an infectious disease that may infect others in the workplace. The regulations define “medical professional licensed in New Jersey” broadly to include, among others, registered nurses licensed by the state of New Jersey.

The law’s effectiveness is expressly tied to EO 103 and therefore, presumably sunsets following the expiration or revocation of the EO. As a reminder, EO 103 is the executive order establishing the state of emergency and declaring the public health emergency.

The law further provides employees with re-instatement rights and protections for seniority, status, benefits, pay, and other conditions of employment. An aggrieved individual may pursue a claim through the NJ DOL or initiate an action in a court of competent jurisdiction with potential remedies that include re-instatement and a $2,500 fine for each violation.

Additionally, the regulations provide that, upon expiration of a protected leave, the employer must re-instate the employee to the same position with no reduction in seniority, status, employment benefits, pay, or other terms of employment. However, if the employer had filled the position, the employee must be re-instated to an equivalent position. The regulations provide for an exception where the employee lost the position due to a reduction in force or layoff where the individual would have lost the employment in any event.

Finally, the Division of Wage and Hour Compliance, Wage Collection Section, will process all claims and conduct any necessary hearings pursuant to the statute. The NJ DOL will utilize the “ABC Test” to determine whether an individual qualifies as an “employee” entitled to the protections under the law.

EO 103 can be found here.

The act granting these job protections can be found here.

What do employers need to do?
New Jersey employers might need to provide training to management staff if any significant changes to workplace policy are needed. 

June 2020 New Jersey HR Legal Updates

Summary of State Laws (Q1 & Q2 2020)

Employee Classification
Several bills have been enacted that penalize employers for improperly misclassifying employees as independent contractors and inform employees of their rights. Among these laws are:

  • Effective January 20, 2020, joint liability will be imposed for employee misclassification on labor contractors that provide workers to an employer.
  • Effective January 20, 2020, New Jersey regulators may issue stop-work orders for violations of wage laws, including misclassification, and may require financial penalties for misclassification.
  • Effective January 20, 2020, the New Jersey Department of Labor and Workforce Development is permitted to post a list of wage-law violators on its website.
  • Effective April 1, 2020, employers are required to post notices in the workplace to inform workers of their rights under the state’s classification laws.

Family Leave, Sick Leave, and Temporary Disability Benefits
Effective March 25, 2020, New Jersey amended the New Jersey Earned Sick Leave Act, New Jersey Family Leave Act (NJFLA), and New Jersey Temporary Disability Benefits Law, which includes New Jersey Family Leave Insurance, in regards to leave and benefits for employees impacted by a state of emergency or a quarantine or isolation order due to a communicable disease by:

  • Expanding the list of qualifying reasons for use of paid sick leave.
  • Expanding the qualifying reasons for leave under the NJFLA, including the need to care for a child due to the closure of the child’s school or place of care due to a public health emergency.
  • Limiting the NJFLA’s key employee exemption.
  • Expanding the eligible reasons an employee may collect temporary disability insurance (TDI) benefits.
  • Eliminating the seven-day waiting period for collecting TDI for sickness related to an epidemic.

Effective June 17, 2020, eligible employees who return to work on a reduced basis while recovering from a disability will be paid a reduced amount of temporary disability benefits.

Effective July 1, 2020, the maximum duration for family leave insurance benefits is 12 weeks (previously six weeks) or 56 days (previously 42 days) taken on an intermittent basis. For temporary disability insurance and family leave insurance benefits, an employee’s weekly benefit rate is 85% (previously two-thirds) of the employee’s average weekly wage, up to a maximum of 70% (previously 53%) of the state average weekly wage.

Pay Statement
Effective May 20, 2020, employers with 10 or more employees must include the following information on employees’ pay statements in addition to the already required deductions:

  • Gross wages
  • Net wages
  • Rate of pay
  • Number of hours worked during the pay period (if relevant to the wage calculation)

Employers are permitted to provide pay statements to employees electronically, unless an employee requests statements in paper form.

Organ and Bone Marrow Donation Leave
Effective May 20, 2020, New Jersey’s Temporary Disability Benefits Law is expanded to provide job-protected leave to individuals who are unable to work because they are donating an organ or bone marrow. For purposes of donating an organ or bone marrow, the one-week waiting period for the payment of temporary disability benefits is eliminated.

 In addition, employers are eligible for a tax credit if they choose to provide a paid leave of absence to employees for bone marrow or organ donation and if such time is in addition to any other paid time off granted to the employee. The credit is equal to 25% of the employee’s salary during the time missed from work, for up to 30 days of missed work for each donation.

May 2020 New Jersey Legal HR Updates

Worker Misclassification

What happened?
A new posting has been released regarding workers’ misclassification.

What are the details?
Employers are required to post the notice, which explains: (1) employers cannot misclassify workers as independent contractors, (2) the state definition of an employee vs. independent contractor; (3) rights of the employee under the law; (4) New Jersey remedies for misclassification; and (5) contact information to file misclassification complaints.

What do employers need to do?
Post the required notice. 11 x 17 or 8.5 x 11.

Resources
https://www.littler.com/publication-press/publication/new-jersey-issues-new-posting-concerning- worker-misclassification

April 2020 New Jersey HR Legal Updates

Updates to Mini-WARN Act

What happened?
The governor signed a bill that makes critical changes to the NJ Warn Act which took effect on January 21, 2020, and postponed amendments to take effect on July 19, 2020.

What are the details?

  • The WARN amendments have been postponed until 90 days after the governor lifts the Emergency Order. Tentative effective date of law is August 6, 2020.
  • The new law has been amended to state the NJ WARN act cannot be triggered due to “fire, flood natural disaster, national emergency, act of war, civil disorder or industrial sabotage, decertification from participation in the Medicare and Medicaid programs…or license revocation.” This amendment is retroactive to March 9, 2020.

What do employers need to do?
No action necessary.

Resources
https://www.littler.com/publication-press/publication/new-jersey-warn-act-covid-19-amendment-pending-radical-expansion-law

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Paid Leave

What happened?
The governor signed a law that expanded the use of family leave due to COVID-19 retroactive to March 25, 2020.

What are the details?
Additional Leave

  • Employees may take leave to care for a child due to the closure of the child’s school or place of care or care for a family member with COVID-19 or a related illness.
  • Up to 12 weeks of unpaid job-protected leave within a 24-month period.

Applicable Leave

Employees may request leave for the following reasons:

  1. In-home care or treatment of an employee’s child due to closure of public school or place of care;
  2. Under the requirement of a mandatory quarantine; and
  3. Healthcare provider or public health authority recommending a family member under the employee’s care voluntarily under self-quarantine.

Certification

  • For reason 1: The date when the closure began and the reason for the closure.
  • For reason 2: The date the public health authority issued the determination and the date of the determination.
  • For reason 3: The date of the recommendation, likely duration of the condition, and medical or other facts related to the condition known to the public authority or healthcare provider.

Additional Details

  • Employers may not deny leave for highly compensated employees.
  • Intermittent leave is permitted for the following reasons:
    • The covered individual notifies the employer of the need for leave as soon as practicable and
    • The employee makes a reasonable effort to schedule leave to not unduly disrupt the employer’s operations. A schedule of the time off needed is beneficial, but not required.

What do employers need to do?
Comply with the above.

Resources
https://www.seyfarth.com/news-insights/paid-leave-and-coronaviruspart-xii-more-new-jersey-covid-related-paid-leave-amendments-including-school-closure-leave-signed-into-law.html